Com. v. L'Abbe

• Decision Date: 08 November 1995
• Citation: 421 Mass. 262,656 N.E.2d 1242
• Parties: COMMONWEALTH v. Wayne R. L'ABBE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1242

656 N.E.2d 1242

421 Mass. 262

COMMONWEALTH v. Wayne R. L'ABBE.

Supreme Judicial Court of Massachusetts,

Essex.

Argued Sept. 13, 1995.

Decided Nov. 8, 1995.

Alan Jay Black, Springfield, for defendant.

Margaret J. Perry, Assistant District Attorney (Frederick B. McAlary, Assistant District Attorney, with her), for Commonwealth.

Before LIACOS, C.J., and WILKINS, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The defendant, Wayne R. L'Abbe, was convicted by a jury of murder in the first degree and given the mandatory sentence of life imprisonment. On appeal, he claims that: (1) he was not competent to stand trial; (2) he was not competent to waive his own presence at trial; (3) presence at trial is not waivable in a capital case; (4) his motion to suppress certain evidence should not have been denied; and (5) this court should exercise its power under G.L. c. 278, § 33E (1994 ed.), to reduce his murder conviction or order a new trial. We affirm the conviction and offer no relief under G.L. c. 278, § 33E.

The first assessment of the defendant's competence to stand trial was made after a hearing on October 5, 1992. A Superior Court judge concluded that the defendant was competent to stand trial and issued a memorandum and order. The defense moved for a continuance in order to permit a defense psychiatrist to perform a psychiatric evaluation of the defendant.

On November 16, 1992, the defendant filed a pro se motion seeking substitute counsel. The defense attorney subsequently moved for permission to withdraw. Another judge scheduled a hearing on the motion and after a discussion with the defendant and his attorney, she denied both requests. On or about November 30, 1992, the defendant filed a motion to waive counsel and proceed pro se. On December 7, the judge held a hearing on the motion to waive counsel, and took psychiatric testimony on the defendant's competency to stand trial and to waive counsel.

On December 9, 1992, the judge, sua sponte, held another competency hearing, after which she again concluded that the defendant was competent to stand trial; however, she expressed doubt as to whether he could represent himself adequately due to the likelihood that he would break down under the stress of trial. At the judge's suggestion, the defendant deferred his request to waive counsel until after hearing scheduled for the next day.

A hearing was held on the defendant's motion to suppress certain statements made by him during his initial interviews with the police, as well as physical evidence seized from his truck. During the suppression hearing, the defendant had an emotional outburst, after which he refused to return to the courtroom. The court psychiatrist then evaluated the defendant. Based on this evaluation the judge concluded that the defendant was competent both to absent himself from the hearing and to stand trial. The judge found that the defendant knowingly and intelligently waived his Miranda rights and that his statements were voluntary. The judge granted the motion to suppress the physical evidence found in the truck.

Empanelment began on December 11, 1992. The defendant was present with counsel and asked to be returned to Bridgewater State Hospital during the trial. The judge held a colloquy with the defendant, after which she again concluded that the defendant was competent to waive his right to be present at trial, and that his waiver was knowing, voluntary, and intelligent. The defendant agreed to be represented by counsel for the remainder of the trial, waiving his right to proceed pro se. The judge gave the defendant the option of remaining in the courtroom, going to a room behind the courtroom to view the proceedings through video equipment, or to remain downstairs in the courthouse. The defendant chose to stay downstairs. The defendant left, and a jury were empaneled.

On December 14, 1992, the court reconvened and the defendant asked the judge to empanel a new jury in his presence. After a new jury were empaneled and sworn in, the defendant asked to be absent for the remainder of the trial. The judge held a separate colloquy to determine whether the waiver of presence was voluntary and intelligent: the defendant signed a written waiver notice, and the judge then permitted the defendant to leave the courtroom. The jury were specially instructed not to speculate on the reason for the defendant's absence. They were told it had nothing to do with any disruptive conduct and not to draw any inference of guilt from it.

Every morning of the trial, the judge held a separate colloquy with the defendant and obtained a written waiver of his right to be present. After the jury convicted the defendant of murder in the first degree with deliberate premeditation and with extreme atrocity or cruelty, the defendant filed a timely notice of appeal.

We briefly summarize the facts as the jury could have found them. The victim was a former girl friend of the defendant. At the time of her murder, the victim had ceased having a romantic relationship with the defendant and they were "friends." He had twice tried to give her a "pre-engagement ring," which she refused. He bought her a "friendship ring," which she accepted. On Friday, April 26, 1991, the defendant bought a bus ticket and visited the victim at her place of employment for lunch. She requested that he return her bicycle. That evening, the defendant returned the bicycle and asked that the victim drive him home. She did so. At the defendant's house, she waited in her automobile while he went into the house to look for the receipt for the ring he had given her so she could have it sized. He then went to his truck and took out a "survival knife" with a five and one-half inch blade that he had bought from his brother one month earlier. He returned to the automobile and stabbed the victim over forty times in the neck, back, chest, lungs, and heart.

The defendant then drove the victim's automobile to Logan Airport. He went to the central parking lot at the airport, parked the car, and put towels from the automobile over the victim's body. He then took the subway train to the bus station and took a bus to New York City, Kansas, and Oklahoma. He had about $800. In Wichita, Kansas, the defendant sent a postcard to his brother to tell the State police where the victim's automobile was located. He then went to Las Vegas where he was identified and arrested by a special agent of the Federal Bureau of Investigation.

1. Competency to stand trial. The defendant's first claim is that he was not competent to stand trial. As the judge's memorandum and order indicates, she conducted an exhaustive examination into the competency of the defendant. Competency to stand trial requires that the defendant have the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense. Commonwealth v. Crowley, 393 Mass. 393, 398, 471 N.E.2d 353 (1984), quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1975). The burden of proof is on the Commonwealth to show that the defendant is competent. Crowley, supra 393 Mass. at 400, 471 N.E.2d 353. The judge found, and the defendant did not dispute, that he understood fully and rationally the proceedings against him. The disputed issue is whether he had the capacity to consult with his lawyer and to assist in preparing his defense.

The defendant argues that, because he was unable to discuss the details surrounding the stabbing with counsel or with psychiatrists, he was not able to assist adequately in his defense. A competency hearing must be held "where there exists doubt as to whether the defendant satisfies the [Dusky ] test." Crowley, supra at 398, 471 N.E.2d 353, quoting Commonwealth v. Vailes, 360 Mass. 522, 524, 275 N.E.2d 893 (1971). In the present case, there were three competency hearings, including one which the judge called sua sponte. The judge based her findings of competency on relevant factors: her observations, the psychiatric testimony of Dr. David Rosengard and Dr. David Swenson, the original competency evaluation of Dr. Wesley Profit, and her own colloquies with the defendant. Commonwealth v. Hill, 375 Mass. 50, 54-55, 375 N.E.2d 1168 (1978). Every psychiatrist or psychologist who testified in connection with this case found the defendant competent to stand trial under both aspects of the Dusky test.

The judge's determination that the defendant was competent to stand trial was within her discretion. See Commonwealth v. DeMinico, 408 Mass. 230, 234-235, 557 N.E.2d 744 (1990) (defendant competent to stand trial despite testimony during trial that defendant experiencing psychotic episode); Commonwealth v. Kostka, 370 Mass. 516, 522, 350 N.E.2d 444 (1976) (defendant competent despite some psychiatric testimony to contrary). Contra Commonwealth v. Crowley, supra 393 Mass. at 395, 471 N.E.2d 353 (defendant suffering from chronic paranoid schizophrenia; burden of proof of incompetence had been on defendant). In the present case, the judge found that the defendant was:

"unwilling to discuss certain things, and was suffering from reactive depression ... [however] he had the capacity to cooperate in preparing his defense, and to assist defense counsel. For example, he was angry with his attorney for not subpoenaing certain defense character witnesses. He informed [defense counsel] of their identity, and at least one was called. Although initially he refused to participate in the jury impanelment, after his discussion with counsel, he changed his mind. The court observed him consulting with his attorney and making observations of the members of the venire."

"A 'defendant's demeanor at trial and response to questioning by the judge ... [are] relevant to a decision on the merits of the competency issue.' " Commonwealth v. DeMinico, supra 408 Mass. at 236, 557 N.E.2d 744 quoting Commonwealth v. Hill, supra 375...